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German Court: ISPs Must Hand Over File Sharer Info 136

Posted by Soulskill
from the but-i-thought-sharing-was-caring dept.
itwbennett writes "The German Federal Court of Justice has ruled that ISPs have to turn over to rights-holders the names and addresses of illegal file sharers, but only 'if a judge rules that the file sharer indeed infringed on copyright,' said the court's spokeswoman, Dietlind Weinland. The ruling overturns two previous rulings by regional courts and is significant because the violation doesn't have to happen on a commercial scale, but applies whenever 'it is possible to know who was using an IP address at the time of the infringement,' the court said."
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German Court: ISPs Must Hand Over File Sharer Info

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  • by pipedwho (1174327) on Tuesday August 14, 2012 @10:26PM (#40992737)

    So, how do they know how many people live at the residence serviced by the named account? And by extension which one was using the computer at the time the alleged offence is supposed to have occurred?

    • by zero.kalvin (1231372) on Tuesday August 14, 2012 @10:31PM (#40992781)
      There is nothing wrong in questioning the person to whom the service is registered to. However, I agree automatic guilt assumption is wrong, but I repeat if your name is on it then you should be questioned.
      • Questioned by whom? The MAFIA/RIAA payment enforcers/debt collectors? Or somebody else?

      • by pipedwho (1174327) on Tuesday August 14, 2012 @11:01PM (#40992983)

        And if they don't like the answer?

        eg 1. There are a number of people in my household, including friends that visit regularly and all have access to the wifi network.

        eg 2. The wifi node at the local coffee shop is accessible by anyone within range.

        eg 3. The wifi at the place where I work is accessible by hundreds of employees and clients.

        • Agents of the law never don't the answer: I didn't do it, or I had nothing to do with it. That is irrelevant, if they want to take you to court anyhow, then regardless of your answer you are still going to court. Look at it from this point of view: A crime has been committed and the police know the criminal used a rental car from the X agency. Why wouldn't they go and question the owner of agency X ? He might be the one who did it, he might know who did it or can offer information, or (most probably) knows
          • by pipedwho (1174327)

            Law enforcement personnel can ask you about anything they want at any time. That doesn't mean you have to (or can) tell them what they want to hear.

            They can try to get a warrant (or in the case of the MAFIAA, a subpoena) and turn up at your place with a forensic team and search it. But, that isn't going to help them if they don't find what they want. You still don't have to tell them who you think might have committed the crime, and the fact that you can't or won't accuse someone else doesn't automatically

        • And if they don't like the answer?

          eg 1. There are a number of people in my household, including friends that visit regularly and all have access to the wifi network.

          If they give you one or several timestamps, you should be able to recall the people around.

          eg 2. The wifi node at the local coffee shop is accessible by anyone within range.

          Coffee shop's wifis in Germany are typically run by 3rd-party companies, and have a habit of requiring a telephone number for registering (although the law is that telecommunication providers must not obtain more data than is required forwarding data).

          eg 3. The wifi at the place where I work is accessible by hundreds of employees and clients.

          The IT department will identify you, because the company doesn't want to pay so they'll make you pay.

      • Should be questioned? Perhaps if there was a murder that took place. This is merely copying. What a waste of time and money that will prove in the end to be futile.

        • This is a different discussion, I agree that it is stupid. But copyright holders have a right to pursue their rights regardless of our opinion on said rights or what the law allow and doesn't allow. If they want to pursue it, then do it in a way that both conserve their rights and yours. You have a right to presumption of innocence and they have a right ( by the proxy of police or something else) to pursue every information they have.
          • by sqrt(2) (786011) on Tuesday August 14, 2012 @11:39PM (#40993215) Journal

            But copyright holders have a right to pursue their rights

            Why? Where does that notion come from? The very existence of copyright is a choice by society, it is not supported by any natural law. In fact, as Thomas Jefferson figured out almost 200 years ago, ideas are fundamentally incompatible with the concept of ownership and private property. You have no right to control how your ideas are used, spread, or altered after they leave your own mind. The only way you can protect an idea from being spread is to keep it to yourself. Once it's out, you can't put it back, you can't take it away from people whom it has spread to. An "idea" can be an invention, a song, a novel, just about anything that is the product of human imagination or ingenuity (not in physical form).

            "Intellectual property" is a fiction. It's a mass-delusion. It's a choice. It is not inevitable, it is not necessary, and it has not been an aspect of civilization for most of human history. We've accepted it because it was a useful compromise for a long time, but it is rapidly losing relevance and efficacy. As you can plainly see, attempts to maintain the entrenched system are leading to abuses of civil and privacy rights in the name of enforcing copyright law. It's no longer an enabling force for human creativity, it has become a threat to human freedom.

            • by siddesu (698447) on Wednesday August 15, 2012 @12:09AM (#40993387)

              "Intellectual property" is a fiction. It's a mass-delusion. It's a choice....

              IP is none of these. IP is a variation of a business model known as rent-seeking in economics. Basically, a natural or legal (such as IP) monopoly creates excess profits, which allow those making them to engage in various tactics that extend the monopoly. Since the profits and the harm from such tactics are distributed very unevenly (few get very rich, while the huge majority loses a little), the incentives and resource availability may prevent political corrective of the rent-seeking even in a democratic society.

              • "Intellectual property" and "copyright" issues exist now because the U.S. government has been so good at shipping jobs and manufacturing overseas. That made Washington decide that media production is the _ONLY_ big money-maker the U.S. has left, and hence it _MUST_ be protected!
            • Re: (Score:3, Insightful)

              by Capsaicin (412918) *

              Why? Where does that notion come from? The very existence of copyright is a choice by society, it is not supported by any natural law.

              Why? Because it is a "choice by society" of course!

              The very existence of alienable private property, especially in land, is also "a choice by society." Now I do prefer being a holder of property in a "free" society rather than being a middle-European peasant bound to the inalienable estate of a seignour, as my ancestors were (bound peasants that is), but the study of his

              • There is no baby. Copyright and patents were crude tools used by kings for censorship and nepotism respectively. They were repurposed with the eventual intent of benefiting society, but it is a tool incapable of that process, regardless of how well meaning those that craft the system are.
                • by Capsaicin (412918) *

                  Copyright and patents were crude tools used by kings for censorship and nepotism respectively.

                  Setting aside the word 'crude,' that's what we in the business call a fact.

                  They were repurposed with the eventual intent of benefiting society,

                  Sure, that is a fair enough characterisation. To be more precise patents over novel ideas were the only survivors of the numerous letters patent and other prerogative monopolies to survive the cull of these "crude tools." They survived because the clear benefit they be

                  • Sure, that is a fair enough characterisation. To be more precise patents over novel ideas were the only survivors of the numerous letters patent and other prerogative monopolies to survive the cull of these "crude tools." They survived because the clear benefit they bestowed. Arguably, by reconciling market forces with technological development, they were instrumental in giving birth both to capitalism and the industrial revolution. Copyright, for course, has a separate history.

                    How could the people that cr

              • by Kjella (173770) on Wednesday August 15, 2012 @08:21AM (#40995423) Homepage

                However, and especially in the context of the every increasing ease by which media can be reproduced, until we can devise a new system which suffers from none of the evils and still ensures reward of intellectual labour, our best hope is to point out how badly the system has gone wrong and attempt to steer it back towards health.

                The problem is that "to steer it back towards health" for the most part equals "turn back time". As long as you have the following four components, IP is doomed:

                1. Computers
                2. Internet
                3. 1st amendment
                4. 4th amendment

                Computers means we can create digital copies that can be copied infinitely without loss. Maybe getting our hands on the first copy may be complicated by breaking DRM or recording through the analog hole or whatever, but it's break once play everywhere. Internet means we can have the technical means to distribute it to everyone as an increasingly faster and faster flash mob. While the 1st and 4th amendment doesn't protect copyright violators, it means you generally can't prevent people from communicating in private. The public sites are a convenience but if you'd like to kill piracy you have to take away one of those four. Either turn it into an appliance-only Internet, shut down the Internet or take away some of the Bill of Rights. Or you can accept that technology has moved forward and that the "good old days" are never coming back.

                • by Capsaicin (412918) *

                  The problem is that "to steer it back towards health" for the most part equals "turn back time".

                  Sure, but legally, not technologically. I had in mind curing the overreach and trying to shift the balance back towards consumers of IP since producers have had the ear of legislators for too long. This will not be easy (especially given what I wrote below) and for it to fly poltically it would require a concrete and hard-nosed platform that could not simply be dismissed as, "they want everything for free" or

                  • by Kjella (173770)

                    The less people respect the idea of IP, the more draconian enforcement you need. The divide between the public opinion on one side and the law, the entertainment industry and their lobbyists on the other side is growing. What you see as a crackdown I see as desperation, as more and more obnoxious threats are required to keep the population at bay. They're not winning the hearts and minds of the young generation, they're just hoping to intimidate them into not file sharing. Most people don't kill because the

                    • The less people respect the idea of IP, the more draconian enforcement you need.

                      I agree

                      The divide between the public opinion on one side and the law, the entertainment industry and their lobbyists on the other side is growing.

                      I agree.

                      What you see as a crackdown I see as desperation, as more and more obnoxious threats are required to keep the population at bay.

                      When is a crackdown not desperation and threats to keep the public at bay? So we are in agreement there too.

                      They're not winning the hearts and

              • by steelfood (895457)

                The very existence of alienable private property, especially in land, is also "a choice by society."

                No. Private property deals with the material. It is the individual ownership of a material, tangible, object. Said object can be anything from a small rock to a large piece of land. Ownership is control. It is natural to control material objects. Property is a small part of a greater concept called individual sovereignty that's a direct result of free will. The laws merely formalize that which already exists.

                Intellectual property, on the other hand, basically treats ideas, thoughts, as tangible objects. Th

                • by Capsaicin (412918) *

                  Property is a small part of a greater concept called individual sovereignty that's a direct result of free will. The laws merely formalize that which already exists.

                  That, to quote Jeremy Bentham, is "nonsense walking on stilts." You've failed to account for the historical reality that individually owned alienable real property only emerges at isolated times and places. It is the exception not the rule.

                  More importantly there is nothing natural about "individual sovereignty," a concept which would have be

            • by ls671 (1122017)

              as Thomas Jefferson figured out almost 200 years ago, ideas are fundamentally incompatible with the concept of ownership and private property. You have no right to control how your ideas are used, spread, or altered after they leave your own mind. The only way you can protect an idea from being spread is to keep it to yourself. Once it's out, you can't put it back, you can't take it away from people whom it has spread to. An "idea" can be an invention, a song, a novel, just about anything that is the product of human imagination or ingenuity (not in physical form).

              Einstein found out the hard way ;-)

      • by symbolset (646467) *
        There is nothing wrong with the police questioning a lead in the case, or getting a warrant. There is definitely something wrong with them naming suspects for vigilante pursuit in what is ordinarily a civil matter.
      • This has become a real problem in the USA. I don't know if many people realize this, but the porn industry is in full force copyright troll mode. To date, over 300,000 subpoenas have been issued to ISPs, and not a single case has been brought to trial. Wonder why? The trolls, once they have your info, basically say "Give us $3000 - $8000 and we won't put you name in lights as having infringed on "Anal cum swappers #2" (an actual title in one of the cases). Most subscribers pony up real fast to settle this m
    • by Rivalz (1431453)

      when your downloading copyrighted items using your phone in the middle of a police station with a camera on you while you verbally admit to the owner of the copyrighted content while showing them exactly what you are downloading and then verify what you were downloading was actually not authorized for you to download...
      If the phone dont fit you must aquit.

      • by sabri (584428) *

        when your downloading copyrighted items using your phone in the middle of a police station with a camera on you while you verbally admit to the owner of the copyrighted content while showing them exactly what you are downloading and then verify what you were downloading was actually not authorized for you to download...

        Read the article again. This is regarding file-sharing. Uploading. The opposite of downloading.

    • I have long suspected that in the US, Verizon is logging MAC addresses. I expect this for several reasons. The first is that a while back, Verizon remotely logged into customers wireless routers nationwide and changed the default password to the serial-number on the router. A great decision for security, but it illustrated some hitherto un-thought-of potential, at least to me. Verizon routers, which are mostly ActionTek and I think using some strange unix-based firmware, are not transparent as far as I know
    • They don't. Since in most cases they will not know who used the IP address, but only who paid for it, there should be no way they could get the name/address.

      As an example, if both me, my wife and my son denies any knowledge of copyright infringement, how will they get a search warrant ? Whose computer will they search ? Can they get permission to search two innocent peoples computer just because those computers sometimes are at the address in question ? How about my sons friends computers who are used on ou

      • As an example, if both me, my wife and my son denies any knowledge of copyright infringement, how will they get a search warrant ? Whose computer will they search ? Can they get permission to search two innocent peoples computer just because those computers sometimes are at the address in question ? How about my sons friends computers who are used on our WLAN ? How about hackers ?

        Of course you can get search warrants against innocent people. As long as there is enough likelihood, before the search, that these people might be guilty. Then you do a search, find nothing, and conclude that the suspicion was likely wrong. Remember: Innocent until proven guilty. Which means you can actually _only_ get search warrants against people who are considered innocent.

    • by Tom (822) on Wednesday August 15, 2012 @03:26AM (#40994231) Homepage Journal

      IANAL, but I live in Germany and have both professional and private experience with the laws and courts.

      It is not that simple. There is a principle called "StÃrerhaftung" in the german legal system, it means that if the culprit can not be identified, the one providing the means can - under certain circumstances - be brought to trial in his stead. It sounds idiotic, but makes sense if you let me explain:
      Imagine your car is used for a traffic violation. Of course they find you through the number plate. You claim that at the time you didn't drive the car and you don't know who did. Say, you were drunk that evening and you remember handing the keys to some friend to drive you home, but you can't remember who. This will usually result in charges being dropped because no culprit can be identified. However, if you try that several times, the court will at one point tell you to a) keep a log book in your car from now on where everyone driving has to write down his trips and b) next time this happens, they will charge you.

      There is currently an active discussion on whether or not the same rules apply to things such as an open WiFi. Again, you can easily say that someone else was using it. From the POV of the law, that's a loophole, and too easily exploited by simply doing bad things and then claiming someone else must've done it.

      In light of that discussion, this is a part of the legal solution to copyright infringement on the Internet. I've not studied it in detail, but it seems balanced on first glance - the requirement to have a court sign it means that most copyright holders won't bother for small-time filesharers, because it's too cumbersome and expensive.

      • by Tom (822)

        aargh, I hate it that /. is still not UTF-8. Anways, the german word is correctly spelled "Störerhaftung".

      • by pipedwho (1174327)

        Interesting.

        The real problem seems to be due to automated infringement generation where it's too expensive/difficult to generate enough evidence to properly identify an offender for an alleged offence. The defence "it wasn't me" is really only applicable in situations where the constabulary are too lazy to do the work themselves and are leaving the enforcement to equipment such as 'speed cameras', 'ip loggers', etc. Just because it's far easier to ticket/fine 'a piece of equipment' (and by extension its own

        • by Tom (822)

          The defence "it wasn't me" is really only applicable in situations where the constabulary are too lazy to do the work themselves and are leaving the enforcement to equipment such as 'speed cameras', 'ip loggers', etc.

          Wrong. In the case of Internet crimes, the IP is easy to identify, the person in front of the PC can not be identified without a warrant. Some traffic offenses (parking, for example), are regularily spotted with the driver not nearby.

          It's even more unjust when you consider that the infringement notices turn up weeks or months (or years!) after the actual infringement has taken place.

          Which is why "I borrowed my car to someone that day, but can't remember who" remains a valid defense. And when it happens too often, having to keep a logbook is the correct solution to the memory problem.

          . This is why due process is so important.

          Which is why this decision requires a court order before the personal info

          • Which is why this decision requires a court order before the personal information is handed over.

            And once they have that information, they send you a letter that states "We have your IP that proves you did this crime and if you don't pay us $7000, we're going to take you to court where we will most certainly prove (as we have done before and are currently doing to others) that you stole this file and charge you $150,000."

            The IP holders are hoping you settle, because the settlement cost they arrive at is less than it would cost to defend yourself. They also usually give you a ridiculous deadline to

            • by Tom (822)

              And once they have that information, they send you a letter that states "We have your IP that proves you did this crime and if you don't pay us $7000, we're going to take you to court where we will most certainly prove (as we have done before and are currently doing to others) that you stole this file and charge you $150,000."

              We are talking german law here, not USA. We have a different legal system where fines are more clearly defined and not as arbitrary and not as ridiculous. Works both ways - you also can't sue McDonalds for a million bucks because you spilt their hot coffee all over yourself.

              In addition to that, germans are safety fanatics. A large part of the population here has an insurance against law suits. I know I wouldn't be too worried if one of those letters came in the mail. I'd call my insurance company which woul

    • So, how do they know how many people live at the residence serviced by the named account? And by extension which one was using the computer at the time the alleged offence is supposed to have occurred?

      By asking I suppose. Like if the police find a body in a house, they don't give up their enquiries just because two or more people live there. In this case :-

      www.murderuk.com/serial_john_christie.html

      ... they hanged the lot! But not everyone lives in some sort of squatter commune where they all share computers and a gateway to the web. They could soon narrow it to me for example, I've no doubt.

    • German law is already clear: The owner of the connection is responsible for the traffic on the connection. If there is wireless, it must be secured in such a way to ensure that others are not using or misusing the connection to download or share infringing material. Either way, the owner is responsible. Now that the connection address can be subpoena'd for the real owner name it means that a lot of lawsuits are coming in Germany.
  • by Anonymous Coward on Tuesday August 14, 2012 @10:40PM (#40992839)

    But you can't know if someone infringed copyright unless you know all of the circumstances of the copying, including the identities involved.

    There are many ways a person may not have been infringing copyright (statutory, fair-use, license, ownership, etc.) even if they were definitely involved in copying.

    If you must prove that someone infringed copyright without knowing who they are first, it is an impossible standard.

    Of course, I expect that this merely technical truth will be disregarded entirely.

  • A bunch of state governments and a central federal government? Interesting.

    • Yes, Bundesrepublik Deutschland = "Federal Republic of Germany". Federalism has been a part of German government for centuries, though things have been carved up quite differently over that time.
  • change (Score:4, Interesting)

    by Penurious Penguin (2687307) on Wednesday August 15, 2012 @12:22AM (#40993443) Homepage Journal
    Something big needs to change in the way we use the internet. The concept of ISP's being the gate-keepers who double as loose hussies for Authoritaria is a dead end. Is a P2P wireless distributed internet immune from censorship and central planning possible? Do I know exactly how to do this? No. But it can be done in theory, though not without a massive tantrum from Omnicontrolus, and a few bits of austerity. This may sound silly, but if something similar doesn't happen, then I think it's just going to be a perpetual fight with incremental casualties leading eventually to death, or some pathetic and crippled version of something previously beautiful. I think some of us might take for granted how much fighting it takes just to hold on to what we have, while taking grievous blows to privacy and still losing a little here and little there in the process.

    Perhaps it's a big-headed notion, but a formidable effort toward such a schema might at least distract these ravenous fiends enough to prevent them from purging freedom from the spectrum altogether. Maybe with the help of private satellites and (I don't know yet; do you?), it is realistic enough to try. I'd rather take some blows to bloat and luxury than to freedom.

    In Germany, you can be fined for having an unencrypted AP -- if someone uses it for "illegal" file sharing. It'll be the same elsewhere soon enough. And it will get worse and worse, until you can't connect without a chip up the arse or job in "intelligence". Some say "Darknets", but is that not something the ISP's could crush easily enough? I actually don't know; I'm asking.

    We've had the DHS (of all agencies!) taking down domains in the US. The "UK" wants to retain all user's ISP data. The "US" wants likewise. What makes people think they aren't already? I suppose the level of patience, or passive retention of the ISPs and governments confuses some. I personally believe no data is destroyed, but I am sure a credible /. champion will humiliate me for admitting this.

    I guess what I am saying, or spewing, is that it's going to take a lot development and hard work to even have a chance of things not sucking ultra badly in the future. And it's going to take a change on the same scale as their own ludicrous and grotesque proposals, but on the positive side. And their proposals are only becoming more and more insane. How insane will they get before one succeeds?
  • by JasperKlewer (1600041) on Wednesday August 15, 2012 @02:24AM (#40993921)
    The influence of big media companies on the judicial system is exactly the reason why the German Pirate Party now has seats in 4 out of the 16 regional parliaments. My German friends say they feel oppressed by the legal harassment they face from law firms, extorting money from ordinary citizens in return for not being sued for large sums of money.
  • However, the information can only be given to the rights holder if a judge rules that the file sharer indeed infringed on copyright, said Dietlind Weinland, spokeswoman of the German Federal Court. The Federal Court is the highest ordinary court in the German judicial system and its decisions can only be overturned by the constitutional court.

    But who is "the file sharer"? Do they have to identify who the actual sharer is before proceeding? Are they going to jump to the (not always true) conclusion that the person named on the account is the file sharer? Are there other provisions in the law to hold an account holder that is not the fire sharer accountable? Do the German courts realize that the law is still allowing the sale of a very insecure operating system in Germany?

  • by StripedCow (776465) on Wednesday August 15, 2012 @02:49AM (#40994047)

    The solution is simple: we should all have our computers infected with a botnet, so that we can put the blame on it whenever we have copyright-infringing material on our computers.

  • by xenobyte (446878) on Wednesday August 15, 2012 @04:35AM (#40994497)

    An ISP can with certainty tell exactly which customer was using a specific IP at a specific time, but not who was using this customers connection. As countless verdicts around the civilized world has ruled, the owner of the connection is not defakto responsible or liable for abuse. The exact user must be determined in order to prosecute, and thus if this isn't possible no prosecution can occur.

    There are multiple vectors available for abuse at any connection, from unsecured wifi, over hacked wifi to various form of unauthorized cabled access where the physical traces later was removed.

    Now, as it is impossible to determine if a connection was abused by someone unauthorized at some point in the past, it is always impossible to rule out outside abuse and thus it is futile to persue the owner of the connection.

    So please stop wasting the time of both the ISP, the customer and the courts. There's nothing to gain at all.

    • by cpghost (719344)

      As countless verdicts around the civilized world has ruled, the owner of the connection is not defakto responsible or liable for abuse.

      In Germany, it doesn't matter, because they apply the principle of Stoererhaftung. Which means: if someone abusing your IP connection does something wrong with it, you as the holder of that connection are responsible. Basically, you as the connection holder are responsible for whatever is being done with it.

      • by Anonymous Coward

        That's not correct. "Störerhaftung" doesn't mean the account holder is liable for the offense. The account holder is only required to implement reasonable measures to prevent copyright infringement, and if he can show that he did that, he's off the hook. If not, he's liable to cease and desist, but still not for the copyright infringement itself, only for facilitating it. The damage from the copyright infringement is on the actual perpetrator. (Of course, since the method is punishment through lawyer f

    • Germany already requires people to carry government IDs and register their address with the police, so an internet ID system would merely be modernizing the law and increasing online safety.
    • So please stop wasting the time of both the ISP, the customer and the courts. There's nothing to gain at all.

      Porn trolls would disagree with you on that, as they've gained millions of dollars by threatening ISP subscribers with lawsuits. All they have to do is "We found your IP associated with our video "Anal cum swappers #2. If you don't pay us $3400, we're going to name you in a suit and everyone searching Google including friends, family, employers, schools will see your name next to our movie and your life will be ruined."

      Guess how many whip out their checkbooks right quick, despite being innocent?

  • Whoever listens to Xavier Naidoo needs immediate medical attention to prevent an outbreak of dain bramage...

  • You know what is wrong with Slashdot?

    A news item comes along (concerning Germany) which you would think would be of great interest to Slashdotters, but after a couple of posts the discussion goes off at a tangent to become a flame war about the USA 5th amendment. This flame war I estimate accounts for about a third of all posts, but what is worse is that these float to the TOP of the discussion in threaded view because the thread takes root so early. To see comments about the news item itself you must

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